Tripura High Court
The State Of Tripura vs Dr. Pradip Bhaumik on 25 June, 2025
Page 1 of 19
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P. No.74/2024
The State of Tripura, represented by the Secretary, Home Department,
Government of Tripura.
.........Petitioner(s)
VERSUS
1. Dr. Pradip Bhaumik, President, i.e. Central Executive Committee (i.e.
CEC) of the Hepatitis Foundation of Tripura (i.e. HFT), ITI Road, Indranagar,
Agartala.
2. Er. Saibal Nandi, Vice President, CEC of HFT, ITI Road, Indranagar,
Agartala.
3. Dr. Priyabrata Sinha, Vice President, CEC of HFT, ITI Road, Indranagar,
Agartala.
4. Sri Dibakar Debnath, General Secretary, СЕС of HFT, ITI Road,
Indranagar, Agartala.
5. Er. Kajal Banik, Joint Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
6. Dr. Avik Chakraborty, Joint Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
7. Mr. Biman Kanti Roy, Finance Secretary, CEC of HFT, ITI Road,
Indranagar, Agartala.
8. Mr. Ashok Kr. Chakraborty, Asst. Finance Secretary, CEC of HFT, ITI
Road, Indranagar, Agartala.
9. Mr. Snehangshu Sekhar Datta, Office Secretary, CEC of HFT, ITI Road,
Indranagar, Agartala.
10. Mr. Suman Biswas, Press Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
11. Er. Chinmoy Debnath, Executive Body Member (i.e. EBM), CEC of HFT,
ITI Road, Indranagar, Agartala.
12. Mr. Ranajib Bhaumik, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
13. Mrs. Tulsi Ghosh Banik, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
14. Mr. Pradip Banik, EBM, CEC of HFT, ITI Road, Indranagar, Agartala.
15. Mrs. Debi Chakraborty, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
16. Sri Mrinal Kanti Guha, Staff, Hepatitis Foundation of Tripura, ITI Road,
Indranagar, Agartala.
.........Respondent(s)
Page 2 of 19
Crl.Rev.P. No.75/2024
The State of Tripura, represented by the Secretary, Home Department,
Government of Tripura.
.........Petitioner(s)
VERSUS
1. Dr. Pradip Bhaumik, President, i.e. Central Executive Committee (i.e.
CEC) of the Hepatitis Foundation of Tripura (i.e. HFT), ITI Road, Indranagar,
Agartala.
2. Er. Saibal Nandi, Vice President, CEC of HFT, ITI Road, Indranagar,
Agartala.
3. Dr. Priyabrata Sinha, Vice President, CEC of HFT, ITI Road, Indranagar,
Agartala.
4. Sri Dibakar Debnath, General Secretary, СЕС of HFT, ITI Road,
Indranagar, Agartala.
5. Er. Kajal Banik, Joint Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
6. Dr. Avik Chakraborty, Joint Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
7. Mr. Biman Kanti Roy, Finance Secretary, CEC of HFT, ITI Road,
Indranagar, Agartala.
8. Mr. Ashok Kr. Chakraborty, Asst. Finance Secretary, CEC of HFT, ITI
Road, Indranagar, Agartala.
9. Mr. Snehangshu Sekhar Datta, Office Secretary, CEC of HFT, ITI Road,
Indranagar, Agartala.
10. Mr. Suman Biswas, Press Secretary, CEC of HFT, ITI Road, Indranagar,
Agartala.
11. Er. Chinmoy Debnath, Executive Body Member (i.e. EBM), CEC of HFT,
ITI Road, Indranagar, Agartala.
12. Mr. Ranajib Bhaumik, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
13. Mrs. Tulsi Ghosh Banik, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
14. Mr. Pradip Banik, EBM, CEC of HFT, ITI Road, Indranagar, Agartala.
15. Mrs. Debi Chakraborty, EBM, CEC of HFT, ITI Road, Indranagar,
Agartala.
16. Sri Sumit Ghosh, Pharmacist & Staff, Hepatitis Foundation of Tripura,
Agartala.
17. Sri Ashim Deb, Staff, Hepatitis Foundation of Tripura, Agartala.
.........Respondent(s)
For Petitioner(s) : Mr. Raju Datta, Public Prosecutor.
For Respondent(s) : Mr. Paramartha Datta, Advocate,
Mr. Alik Das, Advocate.
Page 3 of 19
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of hearing and Judgment & Order: 25th June, 2025
Whether Fit for Reporting: YES
JUDGMENT & ORDER (ORAL)
Heard Mr. Raju Datta, learned Public Prosecutor, for the
petitioner-State and Mr. Paramartha Datta, learned counsel together with Mr.
Alik Das, learned counsel for the respondents.
2. Crl. Rev. P. No.75 of 2024 has been tagged together as not only
the issues involved are same but the same set of respondents are accused
except one more in Crl.Rev.P. No.75 of 2024 of having committed the
offences under Sections 27(b)(ii) and 18(c) of Drugs & Cosmetics Act, 1940
(for short, the Act of 1940). These two revision petitions arise out of the
impugned orders of the same date i.e. 02.08.2024 passed by Special Judge,
West Tripura, Agartala in Special (D&C) No. 01/2023 and Special (D&C)
No.02/2023 respectively.
3. Both the special cases arise out of two complaints being CR
No.261/2019 and CR No.262/2019 (Annexure-1 in both the petitions) lodged
before the learned Chief Judicial Magistrate, West Tripura, Agartala by the
complainant-Inspecting Officer (Drugs), Office of the Deputy Drugs
Controller, Government of Tripura, Agartala with similar allegations that the
accused persons had been found to store drugs without a valid license which
is punishable under Section 27(b)(ii) read with Section 18(c) of the Act of
1940. Upon transfer to the Court of learned Judicial Magistrate, First Class,
Court No.6, Agartala, West Tripura, both the complaint cases were proceeded
by examination of the complainant and her witnesses. Cognizance was taken
on 15.11.2019. The learned Judicial Magistrate, First Class, Court No.6,
Agartala, thereafter committed the case by order dated 01.08.2023 (Annexure-
3 in both the petitions) to the Court of learned Sessions Judge, West Tripura,
Agartala, in view of the specific provisions under Section 32(2) of the Act of
1940 that no Court inferior to that of a Court of Session shall try an offence
punishable under this Chapter after supply of the statement of the persons
examined by the Magistrate and other documents to the accused persons in
compliance of the Section 208 of the Cr.P.C. Thereafter, the accused persons
filed an application under Section 245 (2) of Cr.P.C. before the learned
Sessions Court for discharge from the liability of the case (Annexure-4 in
both the petitions). They asserted that the present case was not maintainable
because the learned Judicial Magistrate, 1st Class, Court No.6, Agartala, West
Tripura, took cognizance of offence under Section 27(b)(ii)/18(c) of the Act
of 1940 and thereafter recorded evidence which is not permissible as per
Section 32(2) of the Act of 1940. They, therefore, prayed for discharge of the
accused persons from the liability of the case. Averments in the applications
filed under Section 245(2) of Cr.P.C. by the accused persons in both the cases
do not refer to the merits of the complaint or the statements recorded before
the learned Magistrate on examination of the complainant and her witnesses
that the ingredients of the offence under Section 27(b)(ii)/18(c) of the Act of
1940 are not made out against them. However, the learned Special Judge,
West Tripura, Agartala by the impugned order dated 02.08.2024 proceeded to
hold that the learned Judicial Magistrate took oral evidence of all the
prosecution witnesses under Section 202(2) of Cr.P.C which was not proper
as it had no jurisdiction to try the case in view of Section 32(2) of the Act of
1940. On the applications under Section 245(2) of Cr.P.C. by the accused
persons challenging the maintainability of the case, the learned Magistrate
realizing that it had no jurisdiction to try the case ultimately committed it to
the Court of sessions for trial vide order dated 01.08.2023 without passing any
specific order. The learned Special Judge, West Tripura, Agartala also
proceeded to examine the question as to whether the complaint and the
materials available on the record constitute the offences alleged under Section
27(b)(ii)/18(c) of the Act of 1940. The learned Special Judge, West Tripura,
Agartala, after going through the materials and the statement recorded by the
learned Magistrate held that no prima facie case against the accused persons
have been made. All the accused persons/respondents were thereby
discharged from the liability of this case and set at liberty. Their bail bonds
were also discharged. The State being aggrieved by the impugned orders
dated 02.08.2024 passed in Special (D&C) No. 01/2023 and Special (D&C)
No.02/2023 has preferred the two revision petitions.
4. Mr. Raju Datta, learned Public Prosecutor for the petitioner-
State, has inter alia submitted as follows:
(i) That taking of cognizance by the learned Judicial Magistrate
even erroneously does not vitiate the proceedings in view of
Section 460(e) of the Cr.P.C.
(ii) Sub Section 2 of Section 32 of the Act of 1940 provides that no
Court inferior to that of a Court of Sessions shall try an offence
punishable under this Chapter, save as otherwise provided in the
Act. Relying upon the decision of the Apex Court in the case of
Hardeep Singh versus State of Punjab and others reported in
(2014) 3 SCC 92 specifically paragraph No. 38, it is submitted
that the trial commences on the framing of charge and not from
the stage of taking of cognizance. Therefore, the learned Judicial
Magistrate did not commit any error in taking cognizance in
respect of the offence alleged in the complaint instituted by the
competent officer under the Act of 1940. The criminal
proceedings were not vitiated. The learned Magistrate rightly
committed the case to the Court of Sessions for proceeding with
the trial after supply of the papers in compliance of the Section
208 of the Cr.P.C.
(iii) Learned Public Prosecutor further submits that since the offences
are exclusively triable by the Court of Sessions no application of
discharge can be maintained under Section 245 of the Cr.P.C.
Such prayer can be made only in consonance with the specific
provisions sunder Section 227 of the Code. The learned Special
Court has completely overlooked the inherent infirmity in the
application for discharge filed by the accused persons.
(iv) It is submitted that the application for discharge under Section
245 of the Code questions the maintainability of the case before
the learned Judicial Magistrate in view of Section 32(2) of the
Act of 1940. The application of discharge was completely silent
on whether the complaint and the statement recorded by the
learned Magistrate at the pre charge stage along with other
documents produced before the learned Judicial Magistrate
constitute the ingredients of the offences under Section
27(b)(ii)/18(c) of the Act of 1940. The learned Sessions Court
had, therefore, no occasion to examine the materials to come to a
finding that no prima facie offence is made out against the
accused persons under the aforesaid sections.
(v) However, the learned Special Court also proceeded to hold after
detailed scrutiny of the materials placed on record that no prima
facie offence is made out against the accused persons. Such a
finding was wholly uncalled for at that stage since the accused
persons had themselves failed to take that plea in their
application for discharge under Section 245 of the Cr.P.C. It is
submitted that the complaint read along with the statement of the
complainant and complainant witnesses and other documents
produced before the learned Magistrate supplied to the accused
persons under Section 208 of the Cr.P.C, clearly make out a case
under the offending provisions of Act of 1940 i.e. Section
27(b)(ii)/18(c). Therefore, the impugned order may be set aside.
The learned Special Judge, West Tripura, Agartala, may be
directed to proceed with the trial from the stage after framing of
the charge.
5. Mr. Paramartha Datta, learned counsel for the respondents, has in
opposition inter alia made the following submissions:
(i) That no offence as alleged in the complaint is made out
against the accused persons since they were having a valid
license to store Hepatitis vaccines.
(ii) The learned Magistrate committed a serious error in law by
entertaining the complaint and proceeding with recording
of the statement of the complainant and the complainant
witnesses and thereafter taking cognizance. Sub Section 2
of Section 32 of the Act of 1940 bars any Court inferior to
the Court of Sessions Judge to try the offences under the
Chapter-IV save as otherwise provided under the Act.
Therefore, the order of cognizance was vitiated. The
complaint was also not maintainable.
(iii) The application for discharge filed under Section 245 of
the Cr.P.C. before the learned Magistrate at the first
instance was ignored. However, the learned Magistrate
after realizing that it did not have jurisdiction to try the
offence proceeded to commit the case to the Court of
Sessions after supplying of the papers under Section 208 of
the Cr.P.C. The committal of the case to the Court of
Sessions could not amount to curing the defect in the order
taking cognizance.
(iv) That the learned Sessions Court duly entertained the
application under Section 245(2) of the Cr.P.C. for
discharge of the accused persons wherein the accused
persons/respondents had primarily taken the plea that the
case is not maintainable before the learned Judicial
Magistrate in view of the Section 32(2) of the Act of 1940.
However, the learned Sessions Court was not precluded
from examining the materials on record to arrive at a
finding that no prima facie case is made out against the
accused persons under the aforesaid sections.
(v) That mere non mentioning or wrong mentioning of a
provision of law does not denude the jurisdiction of the
learned Court in exercise of powers on the plea of
discharge. He, however, does not dispute that the
appropriate provision for discharge in such a case triable
by the Court of sessions is under Section 227 of this Code.
Learned counsel for the respondents submits that if the
materials on record collected before the learned Court of
Judicial Magistrate are duly scrutinized, no offence as
alleged would be made out against the petitioner. If the
materials on record do not constitute the offence alleged
under the Act of 1940, this Court would refrain from
interfering in the impugned orders by which the petitioners
have been discharged. Therefore, the revision petitions
may be dismissed as being without merit.
6. I have considered the submissions of the learned counsel for the
parties at length and taken note of the materials placed from record. At the
outset, it is pertinent to refer to the relevant provision of the Act of 1940.
Chapter - IV of the Act of 1940 deals with manufacture, sale and distribution
of drugs and cosmetics. Section 22 of the Act of 1940, provides the powers of
inspectors to inspect, take samples of any drug or cosmetic, examine, search
any person or place, search any vehicle, vessel or other conveyance which he
has reason to believe, is being used for carrying any drug or cosmetic in
respect of which an offence under this Chapter has been, or is being,
committed. He is also empowered to examine any record, register, document
or any other material object found and seize the same if he has reason to
believe that it may furnish evidence of the commission of an offence
punishable under this Act or the Rules made thereunder. He is empowered to
exercise such other powers as may be necessary for carrying out the purposes
of this Chapter or any rules made thereunder. The provisions of the Code
shall, so far as may be, apply to any search or seizure under this Chapter as
they apply to any search or seizure made under the authority of a warrant
issued under Section 94 the said Code. Any willful obstruction in the exercise
of such powers to the inspector conferred upon him by or under this Chapter
is punishable with imprisonment which may extend to three years, or with
fine, or with both.
7. Section 23 of the Act of 1940 provides the procedure where an
inspector takes a sample of a drug or cosmetic for the purpose of test or
analysis under this Chapter by tendering the fair price thereof and giving a
written acknowledgment therefore. Section 23 further provides in detail the
procedure for test or analysis of such samples seized by the inspector. Section
27 of the Act of 1940, provides for penalty for manufacture, sale, etc. of drugs
in contravention of this Chapter. Respondents are alleged to have committed
offence under Section 27(b)(ii) of the Act of 1940 which provides that any
person himself or on his behalf manufactures for sale or for distribution, or
stocks or exhibits or offers for sale or distributes, any drug without a valid
license as required under Clause (c) of Section 18 shall be punishable with
imprisonment for a term which shall not be less than three years but which
may extend to five years and with fine which shall not be less than one lakh
rupees or three times the value of the drugs confiscated, whichever is more.
However, the trial Court may for any adequate and special reasons to be
recorded in the judgment, impose a sentence of imprisonment for a term of
less than three years and of fine of less than one lakh rupees. Section 32 of the
Act of 1940, which is material to the question raised herein to be taken note of
reads as under:
"32. Cognizance of offences. --
(1) No prosecution under this Chapter shall be instituted except
by--
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a State
Government authorised in writing in this behalf by the Central
Government or a State Government by a general or special order
made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether such person is a
member of that association or not.
(2) Save as otherwise provided in this Act, no court inferior to
that of a Court of Session shall try an offence punishable under
this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent
any person from being prosecuted under any other law for any act
or omission which constitutes an offence against this Chapter."
8. In the instant case it is not in dispute that the complaint has been
lodged by the authorized person i.e. the Inspecting Officer (Drugs), Office of
the Deputy Drugs Controller, Government of Tripura, Agartala. Sub Section
(2) of Section 32 provides that save as otherwise provided in this Act, no
Court inferior to that of a Court of Session shall try an offence punishable
under this Chapter. It is by now well settled by virtue of the Constitution
Bench judgment of the Apex Court in the case of Hardeep Singh versus
State of Punjab and others reported in (2014) 3 SCC 92, that the trial of a
criminal case commences from the stage of the framing of the charge and not
from the stage of taking of cognizance. The opinion of the Apex Court at
paragraph No.38 is extracted hereunder:
"38 In view of the above, the law can be summarised
to the effect that as "trial" means determination of issues
adjudging the guilt or the innocence of a person, the person has to
be aware of what is the case against him and it is only at the stage
of framing of the charges that the court informs him of the same,
the "trial" commences only on charges being framed. Thus, we
do not approve the view taken by the courts that in a criminal
case, trial commences on cognizance being taken"
9. As such the trial had not commenced in both the cases after
taking of cognizance by the learned Judicial Magistrate on the complaint
lodged by the competent officer. In order to examine the plea raised by the
respondents that the complaint was not maintainable before the learned
Judicial Magistrate and the proceedings were vitiated on account of
cognizance being erroneously taken by him under Section 27(b)(ii)/18(c) of
the Act of 1940, the relevant provisions of Section 190 of the Code along
with Section 200 to 204 are being reproduced hereunder:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub-section (1)
of such offences as are within his competence to inquire
into or try.
xxx xxx xxx
200. Examination of complainant.-
A Magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination shall
be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the discharge
of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case
to another Magistrate under Section 192 after examining the
complainant and the witnesses, the latter Magistrate need
not re-examine them."
201. Procedure by Magistrate not competent to take
cognizance of the case.--If the complaint is made to a
Magistrate who is not competent to take cognizance of the
offence, he shall,--
(a) if the complaint is in writing, return it for presentation to the
proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to
the proper Court.
202. Postponement of issue of process.--(1) Any Magistrate,
on receipt of a complaint of an offence of which he is
authorised to take cognizance or which has been made over
to him under section 192, may, if he thinks fit, and shall, in
a case where the accused is residing at a place beyond the
area in which he exercises his jurisdiction, postpone the
issue of process against the accused, and either inquire into
the case himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient
ground for proceeding:
Provided that no such direction for investigation shall be
made,--
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session;
or
(b) where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have
been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session,
he shall call upon the complainant to produce all his
witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person
not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to
arrest without warrant.
203. Dismissal of complaint.
If, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the
inquiry or investigation (if any) under Section 202, the
Magistrate is of opinion that there is no sufficient ground
for proceeding, he shall dismiss the complaint, and in every
such case he shall briefly record his reasons for so doing.
204. Issue of process.--(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be--
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1)
shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-
fees or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87."
10. Section 460 of the Code under Chapter XXXV relating to
irregular proceedings, are being reproduced hereunder:
"460. Irregularities which do not vitiate proceedings.
If any Magistrate not empowered by law to do any of the
following things, namely:-
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an
offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension
of a person within his local jurisdiction who has committed
an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or
clause (b) of sub-section (1) of Section 190;
(f) to make over a case under sub-section (2) of Section
192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459,
erroneously in good faith does that thing, his proceedings
shall not be set aside merely on the ground of his not being
so empowered."
11. In the present case the written complaint was lodged by the
competent officer, the Inspector of Drugs as per requirement of Section 32(1)
of the Act of 1940, before the Court of learned Chief Judicial Magistrate.
Upon transfer, the case proceeded before the Court of learned Judicial
Magistrate. The learned Judicial Magistrate called upon the complainant to
examine herself and her witnesses by following the procedure prescribed
under Section 200 of the Code and after taking cognizance vide order dated
15.11.2019 summons were issued upon the accused persons. In view of
Section 200(b) such a course may not have been required as the complaint
was made by a public servant in writing in discharge of her official duties.
The accused persons appeared on 04.01.2020 on such summons.
12. In the case of Rosy and another Versus State of Kerala and
others reported in (2000) 2 SCC 230, the Apex Court has delineated the
course to be adopted by a Magistrate upon receiving a complaint under
Chapter- XIV of the Code. Paragraph No.20 of the report containing the
opinion of the Court is extracted hereunder:
"20. Hence, what emerges from the above discussion is:
I. (a) Under Section 200 the Magistrate has the
jurisdiction to take cognizance of an offence on the complaint
after examining upon oath the complainant and the witnesses
present.
(b) When the complaint is made in writing by a public
servant acting or purporting to act in discharge of his official
duties, the Magistrate need not examine the complainant and the
witnesses.
(c) In such case the court may issue process or dismiss the
complaint.
II. (a) The Magistrate instead of following the procedure
stated above may, if he thinks fit, postpone the issue of process
and hold inquiry for the purpose of deciding whether or not there
is sufficient ground for proceeding against the person accused.
Such inquiry can be held by him or by the police officer or by
any other person authorised by him.
(b) However, where it appears to the Magistrate that the
offence complained of is triable exclusively by the Court of
Session, the direction of investigation by the police officer is not
permissible and he is required to hold inquiry by himself. During
that inquiry he may decide to examine the witnesses on oath. At
that stage, the proviso further gives mandatory directions that he
shall call upon the complainant to produce all his witnesses and
examine them on oath. The reason obviously is that in a private
complaint, which is required to be committed to the Sessions
Court for trial, it would safeguard the interest of the accused and
he would not be taken by surprise at the time of trial and it would
reveal the version of the witnesses whose list is required to be
filed by the complainant under Section 204(2) before issuance of
the process.
(c) The irregularity or non-compliance therewith would
not vitiate further proceedings in all cases. A person complaining
of such irregularity should raise objection at the earliest stage and
he should point out how prejudice is caused or is likely to be
caused by not following the proviso. If he fails to raise such
objection at the earliest stage, he is precluded from raising such
objection later."
13. The decision in the case of Rosy (Supra) has been relied upon in
the case of Shivjee Singh Vs. Nagendra Tiwary & Ors., reported in (2010) 7
SCC 578. In the instant case, the Apex Court was considering the question
whether examination of all witnesses cited in the complaint is sine qua non
for taking cognizance by a Magistrate in a case exclusively triable by the
Court of Sessions? The Apex Court examined the provisions of the Code
under Chapter XIV, XV and XVI containing the provisions under Section
190, Section 200 to 209 of the CrPC and the precedents on the subject and
held that the use of the word "shall" in the proviso to Section 202(2) is prima
facie indicative of mandatory character of the provisions contained therein,
but a close and critical analysis thereof along with other provisions contained
in Chapter XV and Sections 226 and 227 and Section 465 would clearly show
that non-examination on oath of any or some of the witnesses cited by the
complainant is, by itself, not sufficient to denude the Magistrate concerned of
the jurisdiction to pass an order for taking cognizance and issue of process
provided he is satisfied that prima facie case is made out for doing so.
14. The Apex Court in the case of Rosy (supra) has observed that the
irregularity of non-compliance thereof would not vitiate further proceedings
in all cases. A person complaining of such irregularity should raise objection
at the earliest stage and he should point out how prejudice is caused or is
likely to be caused by not following the proviso. The question involved in the
present case is whether taking of cognizance by the learned Judicial
Magistrate was without jurisdiction or has vitiated the trial in view of the
specific provisions under Section 32(2) of the Act of 1940. Chapter - XXXV
of the Code deals with irregular proceedings. Section 460 enumerates such
proceedings which are not vitiated due to irregularity. It provides that if any
Magistrate not empowered by law to do any of the following things
enumerated under (a) to (i) thereof erroneously in good faith does that thing,
his proceedings shall not be set aside merely on the ground of his not being
so empowered. Sub Clause (e) of Section 460 provides that if the Magistrate
is not empowered by law to take cognizance of an offence under Clause (a) or
(b) of Sub-Section 1 of Section 190, the proceedings shall not be set aside
merely on the ground of her not being so empowered meaning thereby that
such irregularity would not vitiate the proceedings. Compare to the above,
Section 461 of the Code provides that if the Magistrate takes cognizance of
an offence under Clause (c) of Sub Section 1 of Section 190, without being
empowered in law on that behalf, his proceedings shall be vitiated.
15. The present complaint case falls under Section 190(1)(a) of the
Code since the present complaint was instituted by the competent authority
authorized under the Act of 1940. Therefore, taking of cognizance by the
learned Judicial Magistrate would not vitiate the proceedings. However, after
taking of cognizance, since the case was exclusively triable by the Court of
Sessions as per Section 32(2), the learned Magistrate, rightly committed it to
the Court of Sessions after complying the provisions of Section 208 of the
Cr.P.C. Since the charges were not framed by the learned Court of Judicial
Magistrate, the trial had not commenced in the sense provided under Section
32(2) of the Act.
16. The accused persons preferred an application for discharge
under Section 245(2) of the Code before the learned Special Judge, West
Tripura, Agartala, taking the plea that the present case was not maintainable
because the learned Judicial Magistrate, First Class, took cognizance of
offence under Section 27(b)(ii)/18(c) of the Act of 1940 and thereafter
evidence was recorded which is not permissible as per Section 32(2) of the
Act.
17. In the application for discharge, the accused persons did not in
specific terms raise the plea that no prima facie offence is made out under the
aforesaid sections on the basis of the complaint, statement of complainant and
its witnesses and other documents produced before the learned Judicial
Magistrate. The learned Special Court proceeded to not only deal with the
legal issue whether the case was not maintainable on account of cognizance
being taken by the learned Judicial Magistrate under the offending provisions
of the Act of 1940, but erroneously also proceeded to examine the plea on
merits to come to a finding that no prima facie offence was made out against
accused persons. In a case triable by the Sessions Court, the relevant
provisions for seeking a discharge are provided under Section 227 of the
Code which the accused persons did not invoke.
18. Therefore, in the light of the discussions made and the reasons
recorded hereinabove, this Court is of the considered view that the impugned
order is unsustainable in law. Taking of cognizance by the learned Judicial
Magistrate did not vitiate the trial of the present complaint cases. The learned
Sessions Court would now proceed from the stage of framing of the charge
for commencement of the trial. The respondents are at liberty to make a
prayer for discharge before the learned Sessions Judge, West Tripura,
Agartala, under the relevant provisions of the Code which may be considered
in accordance with law.
19. Let it be made clear that no observations made hereinabove
would influence the learned trial Court on merits on the applications for
discharge made by the accused persons/respondents.
Both the revisions petitions are accordingly allowed.
Pending application(s), if any, shall stand disposed of.
(APARESH KUMAR SINGH), CJ
Munna
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2025.07.01 14:24:25 +05'30'
